Predictably her nomination produced swift reaction: cheering accolades from some quarters and harsh condemnation from others. What caught my own attention was the response of a number of conservative pundits to an article Sotomayor wrote with Nicole Gordon, “Returning Majesty to the Law and Politics: A Modern Approach” (PDF), 30 Suffolk U.L. Rev. 35 (1996), based upon a speech Sotomayor delivered in February 1996 as part of the Donahue Lecture Series, a program instituted by the Suffolk University Law Review to commemorate an honored 1921 alumnus, Judge Frank J. Donahue. A former faculty member, trustee, and treasurer of Suffolk, Donahue served as an Associate Justice of the Superior Court of Massachusetts for 42 years. (As an aside, over the years the Donahue Lecture Series has featured many distinguished speakers, including Chief Justice William H. Rehnquist, Associate Justices Antonin Scalia and Stephen G. Breyer, and Judge Richard A. Posner.)

Sotomayor’s article acknowledges the lack of public confidence in law and legal institutions, due in part to law’s propensity to evolve over time and the uncertainty of its outcomes, and sets forth some modest proposals to restore confidence in the legal profession and the judiciary. Sotomayor recognizes, too, the binary limitations of law, giving alternative dispute resolution a nod:

…the adversary system, almost by definition, cannot address the gray area of the “truth” present in most cases because the system tends to produce all-or-nothing winners and losers. This is why settlements and new forms of “alternative dispute resolution” are so important.

What provoked the heated wrath of several conservative voices? These words:

The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances.

And these:

The constant development of unprecedented problems requires a legal system capable of fluidity and pliancy. Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions; although changes cannot be made lightly, yet law must be more or less impermanent, experimental and therefore not nicely calculable. Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.

And finally these:

…a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction…[referring to cases of first impression]

Sotomayor’s critics are quick to see these as nothing more than secret code, the tell-tale signs of judicial activism, and convincing proof that Sotomayor will make up law out of whole cloth to advance a radical left-wing agenda.

Alas, there is nothing either remarkable or sinister about what Sotomayor has written. She is simply describing what every first-year law student in common law jurisdictions like the U.S. learns during his first few weeks in law school: that law is in flux, gradually but constantly evolving, and that some of it, as indeed it has been for centuries, is the product of judicial decision making not legislative action. At the risk of reproducing here what has rapidly devolved into a tedious cliché through constant repetition, I offer you what jurist and legal scholar Oliver Wendell Holmes said about the law in his best known work, The Common Law:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

On a less lofty, more pragmatic level, the uncertainty of law is well known to its agents, intermediaries, and surrogates: it is what creates leverage at the mediation table. As litigators and the mediators who assist them behind closed doors know full well, the law can be unpredictable, so better trade hope for certainty by settling.

While pundits cannot see it, even the poets know of the mutability of law; I leave you with W.H. Auden’s moving work, “Law Like Love”, which speaks of law’s unknowable and ever-changing nature:

Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
To-morrow, yesterday, to-day.

Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.

Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.

Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.

And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.

If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,

No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyvay:
Like love I say.

Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.

Where do we draw the line? People often feel the “lawyer letter,” that demand that you pay money “or else” or stop doing something “or else,” is extortionate. After all, the express threat is “pay me or pay to go to court and then pay me.” There’s certainly something extortionate there.

The question deepens when it’s no longer a matter of threatening to take someone to court if they don’t settle a claim, but when it reaches the point of becoming a crime. Does it turn on the lawyer’s good faith? Does it turn on whether the claim has a reasonable basis in law?

Bear in mind that there are claims brought to lawyers that ultimately turn out to be frivolous or baseless, but lawyers pursue them because they seem colorable at the time. There’s a huge difference between the claim being shot out of the water for being frivolous and the lawyer being convicted of a crime for pursuing it.

Well said. I agree that these are important questions to raise. However, my own line of inquiry differs, since this case leaves me uneasy for additional reasons. I have to wonder what this young lawyer was thinking. I am struck by his statement, reported in the Concord Monitor, about why he pursued this path:

“I believe it’s more appropriate to attempt as amicable a resolution as possible,” he said.

What did this lawyer learn in law school? What lessons did his professors impart of settlement and negotiation, of the resolution of disputes? Who taught him that such action, in a case like this, constitutes effort to effect an “amicable resolution”?

Ironically, had he involved the Commission for Human Rights, he might have had the opportunity to mediate his concerns. How sad that this ill-conceived attempt at settlement leaves no winners in its wake.

Comments Off on A settlement demand leads to criminal conviction…and questions

Posted onFebruary 1, 2008|Comments Off on Boys will be boys: gender still an issue for the legal profession

I will remember always the pride I felt the day I was sworn in as a member of the bar.

I was the first woman in my family to go to college, to get an advanced degree, and now, to become a lawyer. It was an important achievement for me and for my whole family.

It meant a great deal, this formal commitment to the courts and to the law that courts serve — to become a member of a profession dedicated to principles so lofty that when you speak their names out loud, you can hear the capital letters ring out:

Justice. Liberty. Equality. Rights.

Such is the romanticism of youth.

A week or so after the ceremony, something unexpected happened to crush my youthful idealism.

I can no longer remember what mission the partner who was supervising me had sent me on, but for the first time I walked into a courtroom as a lawyer. I wore a brand-new suit and carried a leather briefcase (also new). I walked past the gleaming wood rail that marked the area where the general public waited, entered the lawyers’ bullpen, and proudly sat down.

A few minutes later, two attorneys, men in their late sixties, approached my row, caught sight of me, and then glared at me. They stood for a moment, and I had the impression that they were about to ask me to move. Instead, they glanced meaningfully at each other and then sat down directly behind me.

They began whispering to each other, just loudly enough that I could hear every word. “It’s an outrage what’s happened to the legal profession. People these days evidently don’t know their place,” said one. “Looks like anyone can be a lawyer these days,” said the other, “they’ve certainly lowered the bar.” There was more along those lines.

Nothing in my law school career had prepared me for that. I had no idea what to do. I could feel my face burning. I felt sick to my stomach. And really, really angry. The attorney sitting next to me rolled his eyes in disgust. “Ignore it,” he whispered, “and don’t let it get to you. Dinosaurs like that are on their way out.”

I would pose a far more interesting question: what might that attire be concealing?

We mediators are keepers of secrets. People trust us with sensitive information. We know their vulnerabilities, their self-doubt, their long-nursed wrongs, their secretly nurtured hopes. We have seen the hiding places of the human heart.

Yet it’s not only mediators to whom confidences are trusted. Designer and corporate lawyer David Kimelberg is the creator of Inked Inc., a photography project and book exploring the intersection of corporate and alternative culture, in which professionals roll up their sleeves and reveal the tattoos beneath the pinstripes.

An online gallery of photos of lawyers, doctors, and other professionals shows us images of these individuals in work clothes as well as of the body art they keep hidden from their colleagues. (There are, alas, no mediators, in case you were wondering.) It provides a candid look at individuals straddling the line between the professional and the personal, the corporate and the countercultural, as they proclaim their individuality in a conventional world.

Events like this only seem to confirm the worst suspicions that the American public harbors toward its legal system and the legal profession. The images on the five o’clock news tell the story: greedy plaintiffs, overreaching lawyers, justice in chaos.

This month’s issue of the American Association for Justice’s Law Reporter paints another picture. In a print article, “Family of slain journalist agrees to nonmonetary settlement with city to improve emergency services, ” it reports on the unexpected outcome of a lawsuit stemming from the death of a prominent journalist as the result of alleged deficiencies in the District of Columbia’s emergency services.

The family’s attorney observed, “I hope that the example set by the Rosenbaum family will prompt other attorneys to consider creative resolutions to cases where the focus shift from an entirely monetary settlement to a resolution that has a broader impact than just on the litigants in the case.”

Mediators of course will nod their heads in recognition–this is a story familiar to all of us. It’s too bad it’s not a story familiar to the public. Lawyers and mediators alike need to do a better job of telling these stories–stories which reveal the creativity and change that justice can produce.

Comments Off on Creative path to resolution: money not the only way to settle lawsuits

In a case titled “Wimsatt v. Superior Court” (PDF), the California Court of Appeals ruled on Monday that California laws barred a plaintiff from obtaining mediation briefs and related e-mails from an underlying lawsuit so that he could pursue a malpractice action against his former lawyer for conduct during the course of the mediation. The plaintiff alleged that his former lawyer had breached his fiduciary duty by reducing his settlement demand without his knowledge or consent.

California law shields from discovery communications made during the course of a mediation and provides no exceptions on public policy grounds. Although the law permitted no other outcome, the appeals court judge was clearly troubled by the result:

Our Supreme Court has clearly and unequivocably stated that we may not craft exceptions to mediation confidentiality. The Court has also stated that if an exception is to be made for legal misconduct, it is for the Legislature to do, and not the courts…

The stringent result we reach here means that when clients … participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel. Certainly clients, who have a fiduciary relationship with their lawyers, do not understand that this result is a by-product of an agreement to mediate. We believe that the purpose of mediation is not enhanced by such a result because wrongs will go unpunished and the administration of justice is not served.

The judge called upon the Legislature to act in the best interests of justice and the public:

Given the number of cases in which the fair and equitable administration of justice has been thwarted, perhaps it is time for the Legislature to reconsider California’s broad and expansive mediation confidentiality statutes and to craft ones that would permit countervailing public policies be considered.

Like California, Massachusetts law protects the confidentiality of mediation communications. It allows no exceptions. Last September, the mediation community in Massachusetts formed a committee known as the MassUMA Working Group to explore the adoption of the Uniform Mediation Act. The UMA specifies a number of exceptions from the privilege, including evidence of professional misconduct or malpractice by a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation. Enactment of the UMA in Massachusetts would prevent the kind of unjust and unintended consequence that California has just confronted.

That’s the lesson of the day. Justice Aldrich doesn’t appear especially happy about the result, but he says that he’s bound by precedent and that any changes are for the Legislature to make, not the judiciary. Even if the injustice is manifest.

Remember that the next time you agree to participate in a mediation.

(With thanks to colleague David Hoffman for alerting me to this decision.)

Two weeks ago I published a post explaining why I would not be observing One Day Blog Silence today, April 30, when many bloggers will be observing a collective day of silence in honor of the victims of the Virginia Tech shootings along with others who have fallen to violence throughout the world.

I have chosen not to participate. Today instead I am calling attention to another important observance. Tomorrow is Law Day. Law Day, a public education initiative of the American Bar Association, was created to celebrate democracy and the rule of law. I can think of no better way to honor those who have perished through violence than to celebrate the fundamental liberties that the rule of law protects. Before we can have peace in the world, we need justice first.

Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash; ’tis something, nothing;
‘Twas mine, ’tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.

Othello III.iii

These immortal words today carry special meaning for attorneys, no thanks to the recent launch of LawyerRatingz.com, a web site that allows visitors to anonymously (and seemingly indiscriminately) rate and post comments about attorneys.

The web site will undoubtedly leave most lawyers, as it did me, with a nasty taste in their mouths. On the home page a photo depicts three attorneys, all middle-aged white guys in suits, who smirk knowingly into the camera. In the web site’s forum, someone gloats, “For the first time in history, crummy lawyers are going to be held accountable for their misdeeds! I hope you can keep them from closing this site!” (Posted by a sadly misinformed soul who has evidently never heard of disbarment proceedings.)

Meanwhile, the cover of anonymity which the web site gives visitors has resulted in some cases in comments which border on the libelous. Dip in anywhere at random and click on the names of lawyers who have received negative ratings to see what I mean.

Since the raters do not identify themselves, attorneys have no way to shield themselves from or refute false accusations of unethical or illegal conduct. The ratings are there for all the world to see (and search engines to find). Gladys McKie, a lecturer at the Northeastern University School of Journalism, points out in an article in Massachusetts Lawyers Weekly today (sorry, no free online version available) that “anyone can rate a lawyer regardless of whether the rater was a client or not. The rater could be a colleague who has an axe to grind, a neighbor who thinks you’re too noisy, or a friend of a disgruntled client.” Exactly.

What is unfortunate, too, is that while a forum like this may have limited usefulness for allowing dissatisfied clients to let off some steam, it does nothing constructive to address genuine issues that can and do arise between attorneys and their clients. Nor does the web site offer links to bar associations and boards of bar overseers where clients may far more productively address concerns about an attorney’s professionalism.

ADR professionals should take note of this as well. Although LawyerRatingz.com lists only 1,151 attorneys as of today, it is entirely possible that mediators and arbitrators may be counted among them. And, as ADR gains in popularity and public acceptance, it’s only a matter of time before someone thinks to launch MediatorRatingz.com–unless someone has gotten there already.

Just a few days ago the legal blogosphere was abuzz with the news that a federal judge in Florida had ordered two bickering attorneys to settle their differences playground-style: with a game of rock, paper, scissors. The judge mockingly described it as a new form of alternative dispute resolution.

Last week blogger Ernie Svensoninvited readers to take a sobering look at what this all portends for the contemporary U.S. legal system: “Hell, when a federal judge has to tell the attorneys to use a child’s game to resolve their disputes then you know the system is completely broken.”

He’s right of course. Personally I have to wonder what their clients had to say about this (particularly when they see the bill). And as an attorney myself I have to ask, is this really the best that these lawyers could offer? An arbitrary outcome resulting from mere chance, instead of a resolution based on law, reason, and clients’ needs? And is this the business model that attorneys really want to practice?

Surely this is the last thing lawyers need right now–public confirmation that lawyers are useless at resolving disputes. Lawyers have a serious image problem. And current business practices are keeping potential clients away.

Hell, they’re not just keeping clients away, they’re driving them off in hordes. Straight to us mediators.

If you’re interested in hearing what clients have to say about attorneys, gather round. I can tell you what they’re saying to mediators like me.

Many of the people I speak to who come to mediation do so because they see themselves as refugees fleeing from a tyrannical legal system. Often they arrive with stories of attorneys more concerned with racking up billable hours than helping clients conserve assets and maximize gains. Attorneys who insisted that they should “go for the jugular” when really all they wanted to do was to remain on friendly terms with a business partner, neighbor, or soon-to-be-former spouse. Attorneys who didn’t listen or railroaded them into decisions that they couldn’t live with later. Attorneys whose combative styles cost clients money and relationships.

I’m an attorney myself. Believe me, I know that legal advice can save people time, money, and aggravation, and protects them from making uninformed decisions or unwise choices. But despite my best efforts to counter these negative perceptions, these callers remain skeptical that attorneys have anything of value to offer them. They find it far easier to believe the worst of attorneys than the best.

Some of these stories I hear are based on speculation and conjecture — on the experiences of a friend of a friend of a friend, on third-and fourth-hand stories passed on from co-workers, acquaintances, distant relations. These are urban legends which gain power and credibility in the retelling and convince the listeners that attorneys are neither helpers nor healers.

However, what is sad for our profession is the fact that the vast majority of these stories are the result of direct, personal experience. They are real. They happened.

But regardless of the source of these perceptions, the fact is that attorneys have a huge public relations problem.

Sure, we can lay some of the blame on ambulance chasers and the tort reform crowd–they’re both in opposite camps but neither one of them is doing us any good. We can point our fingers at the media which regularly vilify attorneys and rarely report on the important contributions that attorneys make in the service of law and justice.

But there’s also personal responsibility as well. And we attorneys had better start taking a long, hard look at the way we serve our clients and what our business practices have to say about us and our profession.

Consider this from the book’s description on Amazon.com (and negotiators, be sure to note the zero-sum imagery):

Great poker players are master tacticians. Not only do they calculate odds with lightning speed and astonishing precision, but they also cunningly anticipate and manipulate the actions of their adversaries. In short, they boast skills that every lawyer can envy. This highly entertaining work might best be summed up as “better lawyering through poker.” Steven Lubet shows exactly how the tactics of the poker table can be adapted to litigation, negotiation, and virtually every aspect of law practice. In a series of engaging and informative lessons, Lubet describes concepts like “betting for value,” “slow playing,” and “reverse bluffing,” and explains how they can be used by lawyers to win their cases. The best card players, like the best lawyers, have a knack for getting their adversaries to react exactly as they want, and that talent separates the winners from the losers.

When I consider the preceding passage together with the recent ABA ethics opinion, some questions for lawyers, negotiators, and mediators come readily to mind.

Let me say first that as someone who enjoys a good card game (and in fact married my husband in Las Vegas), I have nothing against poker, cards, gambling, winning, losing, or even using those analogies in describing litigation tactics or outcomes. In fact, gambling metaphors lend themselves very nicely to depicting the risks inherent in litigation–it’s the leverage that mediators use when we urge parties to weigh their alternatives.

But should we attorneys and negotiators rejoice to hear these metaphors applied not only to litigation but “virtually every aspect of law practice” including “negotiation”? Are we truly supposed to believe that skill in “manipulating the actions of their adversaries” is a virtue that “every lawyer can envy”?

More to the point, do we really want to be comparing ourselves to card sharks and gamblers when public opinion of lawyers has never been so low? (Although, ironically, just ask anyone what qualities they would wish for in the attorney that represents them, and most people would answer emphatically that among those qualities would be the ability to “cunningly anticipate and manipulate the actions of their adversaries”. But that’s a post for another time.)

As for mediators, if mediation is, as we like to say, “assisted negotiation“, is this the kind of negotiation we want to be assisting? What does it do to public confidence in mediation if we allow parties to “puff”, bluff, and manipulate their way to settlement, even if it does have the ABA’s seal of approval? We still have a responsibility to the process, to our profession, and to ourselves.

Otherwise, in the end, everyone loses. And is that a gamble mediators should be willing to take?